Category Archives: Advocacy

Here are some I’ve been sent already. The topics are advocacy and assessment and eligibility for service users. Please add yours in the comments box below and tweet it around if you’re intending to join in or access the recordings. Go to the Webinars link above right, if you want to sign up – it’s cheaper to buy the series than access past webinars on a one-off Pay to View basis.

Advocacy

Can a local authority say (whether or not in the name of person centred-ness) “Yes, you should have an advocate – and we will give you one, but they’ve got a waiting list. So it will hold up your assessment if you don’t mind waiting – or we could go ahead without, and get your assessment done now – which would you prefer?”

You’ve said in your Community Care webinar that a person has no choice in whether or not they get an advocate. Could you say more about that please because it sounds like the opposite of what the Care Act was supposed to do for social care.

The friend who is being paid by an adult, through the adult’s direct payments, to help and support them in the community, could be a legitimate source of support during an assessment, so as to avoid the need for an independent advocate, yes? What about volunteers who don’t know the person, but to whom the person makes no objection?

Assessment and Eligibility

If an adult with needs for care and support just fills out the supported self-assessment form they’ve been given, and doesn’t really understand how it works and struggles with getting the form done at all because of the effects of their disability, can the local authority just consider their eligibility on the basis of the contents of that form alone, and decide they aren’t eligible?

I’ve heard that an authority can say: “Yes you have got needs on several Outcomes and they are having an impact on your wellbeing but the impact isn’t significant as far as we are concerned, so you aren’t eligible.” If the prospective client thinks the impact on their wellbeing is very significant, who gets to judge and how do we know where this threshold is, and what can they do about it, if the disagreement continues?

Community Care readers will have spotted that Haringey has managed to set the first legal precedent of principle, under the Care Act, about the mandatory nature of the duty to appoint an advocate if the threshold is met, or no reasonable council could possibly consider the person to be without substantial difficulties, in relation to any of the involvement stages of the customer journey (assessment, care planning, review and safeguarding, to name the most common).

This means it is unlawful to assess without one, and that the assessments made without one, when the duty has been triggered, are prone to be declared invalid!

Of significance to ALL councils is the factor of resourcing an advocate, at a time when most will be stretched to capacity on the DoLS backlog. The barrister suggested that demand exceeded supply, but the judge applied pure public law principles and held that that was no excuse in relation to a mandatory duty that had been acknowledged.

More analysis of this case later, but for now, a focus on the advocacy aspect of the case:

The woman in question had severe memory difficulties, could not count, could not tell the time and had severe difficulty in learning her way to new places and using public transport. She had post-traumatic stress disorder and resulting anxiety and depression. She struggled with all manner of basic tasks, including self care, preparing and eating food, management of simple tasks and taking medication.

The judge said this:

“[Haringey Council] appears to accept the claimant was entitled to but did not have an independent advocate when she was assessed under the Care Act, but contends nonetheless that this did not “lead to a flawed assessment process” because referral for such an advocate was made at the time of the assessment, and since then an independent advocate has been appointed in the form of Mind.

[Haringey’s barrister] …contends that as a result of the new Care Act “demand currently outstrips supply.” She says the claimant’s services have not been prejudiced as a result concerning the outcome of the assessment, but I agree with [SG’s barrister] that we simply do not know that. I do accept the defendant’s submission that there may be cases in which it is unlikely the presence of an independent advocate would make any difference to the outcome. This is not one of them, because this appears to me the paradigm case where such an advocate was required, as in the absence of one the claimant was in no position to influence matters.”

On my travels doing training, I am being told that when a council telephones an out of area advocacy provider, because the council has a client in that other area, who needs advocacy, the organisation is often saying “No, we are not allowed to do advocacy for you – we are tied to doing it for this council, the one who is paying us.” Then the council in need says “Well we would pay you, of course – but we need a local advocate” the organisation still says “No, it’s in our contract – we can only do it for the local council”.

Clearly this is madness in light of the Care Act policy. It isn’t co-operation as between councils; it ignores the freedom of the advocacy organisation – unless wholly in the financial control of the purchasing council (which would not be terribly impressive from the ‘independence’ perspective!) – to sell services to whomsoever wants to buy them; and it scuppers the provision of mandatory advocacy services – or makes it cost twice as much, in times of austerity.

What does the guidance say?

Continuity of care and ordinary residence

7.29. The local authority which is carrying out the assessment, planning or review of the plan is responsible for considering whether an advocate is required. In the case of a person who is receiving care and support from one local authority and decides to move and live in another authority, the responsibility will move with the care and support assessment (see chapter 20).

[that bit of the guidance needs to say – we feel sure – “…if the person is simply moving to ordinary accommodation, of their own volition, and not taking up a place in specified accommodation as a resident or a tenant, through the auspices of care planning done by the council that USED to be responsible – for all of those people will be able to assert continuing links with their old council.”]

The guidance goes on:

For a person whose care and support is being provided out of area (in a type of accommodation set out in the section on ordinary residence) (see chapter 19) it will be the authority in which the person is ordinarily resident.

[my comment here is that that is at least consistent with the legislation, because it is underlining that living out of area under a care plan can mean that it is not the authority on the spot which will be liable to pay; and the advocacy obligation should of course go with the authority that is responsible.

But it is not so helpful to people wondering what should happen when a new setting elsewhere than in the place where they are currently living has been found or is going to need to be considered, due to care planning concerns or where a change of status needs to be acknowledged: for instance, from a long term rehabilitation placement, paid for by the NHS out of the person’s original area, not yet counting as CHC, and now perceived to be coming to an end.

My view, applying general, and Care Act principles, is this: when a person is provided for by the NHS – wherever that happens to be – it does not change their place of ordinary residence for social care purposes. When a rehab package is believed to have achieved its purpose, the person in question is entitled to a proper review of whether they NOW need CHC to be commissioned, by the CCG where they have been GP registered (the rehab area, for this example) or whether they are NOW merely eligible for social care purposes or a split health and social care package – and the council where the person was ordinarily resident before the rehab, on general principles, will be the relevant authority for liaising with, UNLESS the person in question is going to make a move to ordinary accommodation somewhere of their own choice because they are not interested in living in specified accommodation. So the OLD council needs to make the decision about whether specified accommodation is needed, in most cases, if there is ultimately no CHC status awarded, and the OLD authority will need to make provision for independent advocacy.]

The guidance goes on:

Understanding of local communities may be an important consideration, so the advocacy/advocate should wherever possible be from the area where the person is resident at the time of the assessment, planning or review.

[My comment is that this only makes sense if the advocate is needed in the context of a settled placement or care arrangement out of area, not a situation where a person needs to consider acquiescing in, or other people need to do best interests decision making about, a move to one of a range of options somewhere else, somewhere other than where the person is currently settled.]

Finally, the guidance says this:

Consequences for local authorities

The local authority should have local policies to clarify the appointing of advocates:

from advocacy services out of their area that they may not have a direct commissioning relationship with (as it currently is with Independent Mental Capacity Advocate (IMCA));

for people placed out of area temporarily;

for people who move from one area to another following an assessment and care and support planning in which an advocate is involved (the same advocate should be involved wherever practicable).

[In all cases, if councils have expanded their IMCA contracts to provide for Care Act advocacy, and think that by so doing they have in some way reserved those advocates for use only by themselves, then I would have to say that I think that the commissioning advice in the Guidance would produce a system that would not be fit for purpose. A council with out of area responsibilities needs to be able to commission Care Act independent advocacy from organisations or individuals on the spot where the client is, or in the area where the client is considering a range of options and needs local insights. Anyone who has worked in social care for a long time will know that charging for services provided by one council ON BEHALF OF ANOTHER which is properly liable, is a commonplace part of the system, based on the law of agency].

Comments about other ways round this hiccup in the thinking, would be most welcome.

Housing law has seen a lot of action in the last year. There have been cases about which council is liable for social care when one council has placed a family out of area for what’s known as the Temporary Housing duty; and another one about the extent to which a council can even ‘post’ people a long way from their current setting, under the Housing Act.

But the most important case has been one which has changed the correct approach to a central concept in who is owed a housing duty: that of vulnerability and priority need. It’s called Hotak.

Housing officers had been encouraged to treat people with obvious needs in this manner, as being lawful: “You are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality”. They had been doing this so as to focus on housing the most vulnerable, locally, and the court in Hotak, has said no – in fact the council’s duty is to house any vulnerable person (subject to the other criteria of eligibility, homelessness and not being intentionally homeless, of course.) The long standing est in Pereira, decided in 1999 has been overridden, and the court has reiterated that the duty is not affected by the shortage of housing or other financial resources available to the council. A duty is a duty, after all.

That message will have a positive effect for Care Act duties are interpreted, and is a good sign of robustness in the judicial approach to duties as opposed to discretions.

It’s all the more important for people now working in First Contact roles or Advice and Information roles to be aware of (or ideally offering a co-ordinated steer in relation to) the interface between housing and social care rights – because securing housing in specialist but unregistered accommodation or ordinary housing association properties through nomination rights, can be something that the Housing department organises – by dint of an evidence basis about vulnerability, disability, priority need etc, by social work or care management staff.

Legal Aid lawyers with a Housing ticket from the Legal Aid Agency are permitted to assist people with Care Act issues, if the person is homeless or threatened with homelessness – through an amendment to the Legal Aid legislation found in the Care Act and Children and Families Act, which is a good way of ensuring that some more lawyers embrace community care law. So there is some hope for legal challenge!

What does the Hotak case say?

H and the other people in the cases heard together were all homeless and male. The Housing Act defines as being in priority need, people who are vulnerable as a result of old age, mental illness or handicap, or physical disability or other special reason, and there is no comparator specified.

Merely being homeless does not constitute priority need, and nor does simply being old or ill or disabled. But if those issues put one at greater risk of harm than an ordinary person who was homeless, then that was enough. If a person was disabled or had some other protected characteristic under the Equality Act, then a housing authority bound by the public sector equality duty in that Act needed to give the case heightened scrutiny.

From now on, the comparator is to be an ordinary person, who is in need of accommodation, not ordinary homeless or street homeless people, or people in the particular locality.

‘Significant’ connotes ‘more than minor or trivial’, or ‘substantial’.

If a person has a carer or family member to help them, that is relevant to vulnerability, but only if the existence of that person obviates the vulnerability altogether, not because the need centres upon something that the carer or relative can achieve for the person. if the vulnerability is not wiped out altogether by the help, the person’s supporter can then be housed with the individual deserving of being found to be vulnerable.

Which comes first, housing or social care, in terms of legal hierarchy?

The answer to that is easy! it’s the housing duty. Section 23 of the Care Act makes that clear.

In practice, however, the courts have always allowed the notion of what is a reasonable time for dischargingthe homelessness duty to a vulnerable person in priority need, to be extended, massively, by reference to how very hard it is to find suitable accommodation for people.

It is that fact which means that in practice, integrated or singular adult social care teams may well have no option but to accept that they must use the Social Care department’s resources, and statutory powers or duties, temporarily, rather than those open to their local Housing colleagues, in order to manage the risk to the person’s wellbeing in the meantime.

There will therefore continue to be some people who need to be placed in care homes, or boosted into units in social housing, where Social Care holds the nomination rights, on account of the extremity of their needs. That question is no longer determined by FACS, but by the eligibility criteria regulations (inability to achieve two or more domains plus consequential significant impact). The fact that access to a roof over the head of the person may be the only way of meeting the need is not a question relevant to eligibility but only to care planning and commissioning!

The duty in the Care Act to co-operate with other councils or one’s own colleagues comes into play here, see s6 (4)(b) for specific reference to housing authorities and colleagues. Arrangements must be made for co-operation and all councils should have reviewed their relations in this sphere by now, for practicality and smoothness. This d should ensure that an embarrassing flow of case law about warring teams as to whose jobsomeone’s situation really is, and whether Adult Social Care functions ARE the only way of meeting the need, is limited…

Impact on training and education

Someone (preferably more!) in a unitary or county and district council set-up needs to know about both adult social care law and housing law, it seems to me, in order to ensure that this interface operates fairly and is realistically manageable.

My training team provides specialist half days and whole days about the relationship and we are always up to date. (Sorry for advertising, but we have to make a living!). Email belinda@careandhealthlaw.com if you can see the sense of getting us in.

Some years ago I went to a council do some training on the legal framework and did not er, hold back.

The feedback was that although everyone had enjoyed it, and got value from it, the view of senior management was that my visit “should have been risk managed”. I was pretty chuffed to have made such an impression at the time, I can tell you, but I haven’t been asked back since!

So I was very interested to see that warnings that legal difficulties would ensue, unless more attention was paid to public law legal principles by the management team, appear to have come true! Always great when that happens, methinks! The case is called Clarke, and here is the link to the case.

By 2013 the claimant, a man in his 20s with severe epilepsy, mental health and behaviour that challenged, had become “ordinarily resident” in a tenancy where personal care was available to him in unregistered accommodation. So the new council where the tenancy was situated became responsible for the claimant’s care, in place of Enfield, which had funded the move into the supported living setting, and continued to pay, within its discretion, a specialist epilepsy provider registered to domiciliary care.

In fact the new council did not carry out an assessment until 5 months after Enfield withdrew its willingness to carry on paying, and when it did, it concluded that the claimant’s care could be provided in a non-specialist manner. A support plan costed this at £357 per week as compared with the care package Enfield had been content to pay for, costing £1,300 per week. The new council refused to continue to fund the package from the previously contracted provider, and the young man got an interim injunction to prevent cessation of the package.

Evidence from a specialist neurologist and an epilepsy nurse documented active epilepsy, night seizures and risk of status related to stress and any non-compliance with medication, and injury from falls and 1-2 unpredictable tonic clonic seizures a month.

The provider’s evidence about its provision included its bespoke alarm system, staff trained in all emergency medications administration, and highly skilled management of prolonged seizure activity with access to 24 hour support and monitoring, including waking night staff.

During the pre-trial period, the council raised the allocation amount a little and said that Mr Clarke needed “Waking night support for 3 nights per month, in anticipation that your client will have up to 3 seizures a month during the night”.

Instead of accepting that the provider’s business model of charging per week was valid in relation to the need for 24 hour support, the council purported to assess as an appropriate response to the above profile of need, the following TIMED services:

Support for 3 hours for 7 days a week to assist him with taking medication, meal preparation, eating/drinking and showering and bathing

Support for 3 hours a week to assist him with cleaning, budgeting and managing bills and correspondence.

The council purported to allocate money for these needs at a level of £661 a week as a direct payment. The council did not consult the claimant before producing the updated plan; nor had it explained how it evaluated the claimant’s needs to produce the weekly figure of £661.

The council did not call for its own independent evidence, from any consultant or other experts in the field of epilepsy treatment or care. Although it had available to it the opinions expressed by the claimant’s consultant, GP, epilepsy nurse and care provider it effectively relied on the judgement of a social worker who did not claim to have any medical skills or qualifications.

In evidence, Independence Homes, the provider, said this:

“A waking night’s staff allocation for three nights a month would put Mr C in danger as it is nonsensical to suggest that assistance with medication is only needed some of the time. Additionally, his seizures are not limited to nights. They are whilst sleeping. This puts him at risk of death. So, he could easily (and often does) have a seizure whilst sleeping in the morning or early afternoon. That is why he needs 24 hour care. Sleep in support would not be able to respond to a seizure in time.”

The council maintained that another provider from whom there was no evidence would be able to meet needs, if Mr C moved from his tenancy to another address. That is, the adequacy of the provision at the cost the council wanted to keep the package to, was dependent on the service user agreeing to move HOME to another house where he would receive services from the cheaper domiciliary provider.

The judge found in favour of the claimant, and quashed the decision of the council, ordering it to re-assess the man’s needs lawfully.

[an aside here: if people with disabilities, and advocates out there, cannot do some good with this fantastic precedent about the right – and the very wrong – approach taken in this case, in these difficult times of Care Act implementation, I do not know what to offer instead, I have to say!]

Please read on for the wisdom of the judge:

“It is important to keep in mind that this is a case in which the claimant has been in receipt of these services for a number of years in circumstances in which his medical team and care providers have made it clear that his needs have notdecreased. It is to be distinguished from the type of case in which a claimant is seeking services which he has not had in the past.

In my judgment the assessment by the defendant demonstrates a failure to understand and address the claimant’s medical and support needs. This is most apparent in the approach adopted by the defendant to the provision of support to provide three nights waking care a month against a background of medical and other evidence which demonstrates the need for 24 hour care in circumstances in which seizures, including sleep related seizures are unpredictable and cannot be pre-determined. The explanation as to the basis upon which three waking nights care a month are included within the package as offered in the hearing before me simply does not make sense and does not address the needs identified in the reports from the medical and other professionals.

It is also the case that the claimant has a tenancy at his current placement which has been his home for more than four years and there has been no care plan produced from the proposed non-specialist care provider.

…Notwithstanding the high hurdle faced by the claimant [on judicial review], [I find that] that the decision by the defendant failed to give appropriate weight to obviously relevant material and relied excessively on the non-expert view of a social worker in a face of a wealth of evidence to the contrary from appropriately qualified and experienced experts. I find that those opinions have not been given sufficient weight in the decision-making process and that in those circumstances the defendant should re-assess the claimant’s needs and the extent of care that as a consequence is required.

It was accepted that article 8 [the human right to respect for one’s private and family life and one’s home] was engaged. … I am satisfied that the defendant’s decision that the claimant should be expected to move from his home at which he has a tenancy, to a placement of the defendant’s choosing in circumstances in which no care plan has been provided by the proposed non-specialist care providerdoes amount to an unlawful interference with the claimant’s rights to respect for home and private life.”

Here is the link to the case once again. All review team staff and assessors and care planners in councils receiving people from elsewhere into their area into ordinary accommodation under the continuity provisions – please take account of the principle in this case. Those moving into supported living settings where their needs can only be met by virtue of the availability of personal care will retain continued ordinary residence rights with their OLD authority, under the Care Act, as long as the previous council writes the magic words on the care plan. See other blog posts on ‘ordinary residence’ on this Blog!

Welcome to my new guest blog on Belinda Schwehr’s ‘Schwehr on CARE’ and thanks to Belinda for inviting me.

I have to focus my first posts on what I see as the most pressing human rights issue in social care: the approximately 3,000 individuals (many and perhaps most of them autistic) still stuck inappropriately in long-stay inpatient care 4 years after Winterbourne View.

The Justice for LB campaign is seeking further legislation in an attempt to resolve the issue. Whilst I wholeheartedly support their aims, I can’t see the approach of passing more legislation working. Here’s why. We already have law which addresses many of the issues, but it is simply being ignored.

(1) There is still widespread failure properly to implement the Mental Capacity Act. Capacity is frequently assessed wrongly because:(a) unwise decisions made by someone with a learning disability or autism are used as a basis to assume or evidence lack of capacity;(b) insufficient information and support are provided. All practicable steps to help the individual make the decision themselves are not actually taken. This is particularly true in autism, where it is often due to ignorance of steps which could help; (c) incapacity is assumed, based on one-off assessments, sometimes years previously;(d) incapacity is assumed for one decision on the basis of incapacity in relation to another very different type of decision, without proper analysis of similarities or otherwise;(e) assessments are too often based on the outcome of language-based IQ tests and in ignorance of the evidence that these may well not be a reliable approach to measuring cognitive ability in autistics.

(2) The Care Act already provides strong rights to be involved for adults themselves and for family (either in the form of those the adult asks to be involved or in the form of best interests consultees). There are rights to communication support/interpreters and provision for this to be a familiar person where this is the only way to achieve communication in the case of bespoke methods of communication (including behaviour only). The statutory advocacy duties are right there and properly qualified, independent advocates are the best possible support that people could have. So what’s the problem?

In far too many areas it just isn’t being implemented. It’s hard not to conclude that either local authorities are (a) ignorant of the law; or (b) simply hoping like mad that nobody else noticed.What can we do about it?

(1) Know the law and push for independent advocacy when someone is entitled to it. Councils cannot lawfully assume that family members are suitable informal supporters and use their presence to avoid providing an independent advocate UNLESS both the adult needing support AND the family member CONSENT. Nor can they avoid advocacy by using family members or friends as informal support without THINKING about whether the informal person is actually able to carry out the role of supporting the adult’s involvement appropriately.

(2) Know the law and push for the provision of a communication specialist (as WELL as an advocate) where an individual communicates in a way that the assessor does not understand. This means those who communicate only through their behaviour, those who have echolalia, those who use PECS, AAC or bespoke systems. And THIS MEANS adults who may lack capacity – they have a legal right to be heard and to be involved too!

(3) Know the law and push for PROPER capacity assessments: decision specific and with all practicable assistance, including communication support, full information about all options and processing time.

(4) Know the law and push for fully lawful decision making where someone does lack capacity – in full compliance with the MCA. IMCAs, DOLS, best interests consultees (including family members and providers), proper respect for human rights and all the principles.

Under the Care Act, there’s a specific section all about monitoring of care and support plans, and the rules that apply to changing them. It’s section 27, and it’s the first time that the concepts of review and revision and re-assessment have been put into the statutory framework.

You may be an existing service user in a council where the threshold of neediness, applied by the council before the new law came into effect, was tighter or stricter than it is now, under the regulations which contain the mandatory approach to the concept of a level of need that no person should be left in, nationally, without social care funding or services. The criteria, when taken with the stretched definition of eligibility, and the focus on the person leading the exploration of consequential significant impact on their wellbeing, and interpreted as required by the Government’s Guidance, make the chances of being found to have eligible needs, greater, in my view. So the sooner you get yourself reviewed, the better.

Any such council would inevitably prefer that you leave it as long as possible, before you push for a reconsideration of your needs and rights, under the new system.

The reverse is true, of course, if a council used to operate on a more generous basis than the new criteria: in that case, a person would (him or herself) want to put off their review for as long as possible! And given the focus on cuts, which may mean that there is pressure to accept a smaller package even if one’s needs haven’t changed, and even if the eligibility regulations make no real difference to assessment outcomes locally, people might feel that they’d be better off holding out against being reviewed, for as long as possible. It is impossible to advise on a strategy, but necessary to think it through, in my view.

How long is as long as possible, then? On the one hand, you can’t refuse to be reviewed. It’s not the same as assessment first time round: you’re in receipt of public money and you cannot refuse to be reviewed. Getting anything at all, turns upon satisfying the council that a whole set of facts exists, and if you withhold your co-operation, it will mean that you might lose your services on the footing that the council is no longer satisfied you need any….

On the other hand, in theory, you might well hold out until April 1st 2016. The expectation under the old law (no more than an expectation) was for review at least annually, and the new law came into force on 1st April 2015. Therefore, the expectation is that everyone should have a scheduled review before April 1st 2016, at which point the old law can be repealed in full.

What matters is that when you ARE reviewed, your know your rights under the Care Act.

But for now, the old law subsists, and that means that your current services are provided under the old law, unless and until you are reviewed. (I haven’t seen anyone writing about what that means for charging law – logically, if you are receiving services under the old law, you are receiving services which cannot be charged for under the Care Act, but would still be chargeable under the old charging legal framework. But it is too late at night to think about that right now!)

Under the new law, a person has a right to be reviewed, upon making a reasonable request. You don’t have to prove that your circumstances have changed. You don’t have to do anything more than explain why you want one.

If your circumstances HAVE changed as a matter of fact (your condition has worsened, or your dependency has increased because something in your environment or your relationships has changed) you will be entitled to re-assessment because you will be presenting the appearance of need, in any event. But if your circumstances haven’t changed and you are thinking that you are eligible already, in more respects relating to inability to achieve outcomes than you were before, there is no obvious right on the part of the council to refuse to review your situation just because it’s not yet supposed to be your ‘turn’. ‘Nothing ventured, nothing gained’, should be the motto here, I think.

Under the new law, the council can revise a care plan without doing a full re-assessment to identify all the needs all over again from square one; that is, it can come up with new ways of meeting needs that haven’t changed, without that automatically being unlawful just because there’s been no s9 re-assessment. But the situations in which that will be possible, in practice, are limited.

For instance, if there is an argument about whether new needs need to be counted in, because of a change in the domains covered by the criteria, or factual new needs due to a change, there’s no way a person could be lawfully refused a proper re-assessment. The last one done may have focused only on unmet need, and now the Care Act guidance says that all needs, even met needs, must be considered for recording as eligible, regardless of informal free care and help from one’s own family. That doesn’t mean that the State has to pay your relatives, or provide for what they are willing and able to keep on doing for your benefit, because there is no legal duty to provide for what a carer is willing and able to do themselves – but it does mean that the WHOLE picture, and not just the shortfall, has to be recorded, and measured against the eligibility criteria.

If the council thinks (see s27 of the Act) that “circumstances have changed in a way that affects a care and support plan” (or a support plan for a carer) then it must do a proportionate re-assessment, whatever one of those might be!

I think that this means that a council can actually change the way in which it offers to meet need, without going back all the way to assessing needs from square one. It bothers me, during this initial period (coinciding with further cuts) when many people will be having their care plans reviewed, that many will not know that the criteria have changed, or not know that they are now entitled to written reasons as to why they are or are not regarded as eligible.

To be explicit, my concern is that if a council is reviewing people and offering new ways of meeting unchanged needs, and people don’t know that the criteria have changed, and don’t push for a proper re-assessment, it could be ages before anyone actually applies the new approach in the regulations to them; and it might be some years before they get a proper Care Act compliant care plan, if no-one is thinking ANYTHING does need to be changed in the current plan.

What is happening out there, in practice, please? Please share the local practice, and raise the profile of the review and revision provisions in the Care Act.

Have you had an “indicative resource allocation” applied to your situation, prior to care planning being finished, after a Care Act assessment?

If so, maybe resist the temptation to just grab the money and run for the hills! Taking deep breaths and engaging brain, first, and then finding a calculator, might be a really good idea!

The fact is that some councils have a computerised resource allocation calculation system, for use after the needs have been identified, that generates sums that are known-to-be-lower than the local market rate is actually operating at. This is (not surprisingly) done in the hope that at least some people will just say ‘Wow, thanks so much!’ without thinking the issue through. If people seem satisfied, then how can it be wrong? – the thinking goes. And that means that over time, the cost of meeting care and support needs, shouldered, by the public sector, is kept within pre-set limits, even if people aren’t actually able to buy the help that they were assessed as needing.

I am not knocking the idea of equity and fairness in the matter of the question ‘what sum of money would be needed to meet the assessed need.’ Resource allocation systems are legal, to say the least, so long as they don’t override the need to make a decision about the specific individual’s situation – and some may even be very carefully thought out, tested to destruction, and coherent. But many are ‘closed books’, even to the staff who have to score what’s been said about needs, during the assessment, against them, in order to generate an interim figure, to use to inform the care planning stage.

The courts have long since held councils to legal account, over the rationality and transparency of their policy, regarding appropriate responses to assessed needs; and the same is true about any tools they might design to use for assistance in quality assurance of the outcomes for a widely varying range of people and needs. The case law generated by serious disputes, under the old law, is still bound to be followed as if it were still binding precedent, under the new law, because the fundamental principle that a duty is a duty, and must be discharged rationally, has not been changed, by Act, Regulations or the guidance.

It is clear to those with enough energy to give it some thought that to be of any use to the service user (or to the family member) who is going to be affected by the adequacy of the sum and what it will feasibly cover, the figures on which the correlation between points for needs, in principle, and the pounds allocated to the points, is based to give rise to an average likely cost for a given type of client, must be SANE figures, in the first place.

For example, putting in that home care costs £10.00 per hour, when it costs the council £13.00 per hour, and costs private clients £14.00 per hour, is not going to produce a budget that is needs led and defensible in legal terms, unless the person is over-assessed for how MUCH of the service they are likely to need to be able to achieve the outcomes in the eligibility regulations…Putting in the cost of a support service for a deafblind person as the same cost for a person without complex sensory impairment is just plain daft and optimistic; but councils’s decisions about these approaches are considered legally to be valid unless and until they are challenged…even if harm arises, as a result of the ‘experts’ saying something as unrealistic as ‘one toileting visit a week will be enough’…

What I am trying to raise awareness of is that people assessed under the Care Act don’t get the amount they would like, necessarily; they are only obliged to be given the amount that they NEED, in the view of the assessor acting for the council (albeit after person-centred discussion). The legal definition of a personal budget under the Care Act is the cost to the council of meeting the need, whereas the Government guidance encourages councils to offer direct payments as the first choice wherever that’s feasible – without adequately dealing with what that might mean councils should do, by way of putting extra money in, when the person taking the direct payment is going to be a purchaser buying in small quantities or frequencies, rather than in bulk. My view is that a council must

a) fund to the extent of an objective view as to what is going to be adequate and appropriate;

b) conscientiously consider funding the cost of a direct payment even if it is going to be a bit more than it would cost by way of the council contracting for the same response, because it would promote a person’s well-being by enhancing control over every day life and their services;

c) think REALLY hard before refusing someone a direct payment purely on the grounds that it would cost a bit more, because the only ground for refusal of a direct payment to a capacitated person requesting one is that it isn’t an appropriate means of meeting the need – which would amount to saying that the cost being greater, is what made it inappropriate – and that is a dangerous position to take and one that law firms will clearly want to challenge;

d) have the courage to stick to their guns when refusing sometimes to meet wants as opposed to needs; some outcomes put forward by potential recipients of funding will be wants and not needs, and the council is not obliged to meet them, and can take its resources into account;

e) be very careful to be seen to consider meeting NON-eligible needs, sometimes; and also to be open at least, during care planning and budget finalisation discussions, to contentions that the person’s wants/personal outcomes could be met, or partly met, alongside the meeting of the eligible unmet needs, with JUST A LITTLE MORE money, and that to do so would amount to the delivery of Best Value, and thus make good sense.

Meanwhile, please accept this invitation to post up anything that is eyebrow raising if you’ve been startled by a recent resource allocation, either indicative or final:

Really huge cuts to a person’s budget, since last time round, despite no change in needs;

Arbitrary upper limits to care in a particular setting, such as the person’s own home – capped, for example, by reference to the cost of a care home, even though no-one has dared to suggest that a care home would be therapeutically suitable for the person’s overall needs, physical and emotional; (paragraph 10.27 of the Guidance warns against this approach!)

Care plans being finished off that aren’t in line with the requirements of s25 of the Care Act ( – a section of the Act that makes doing a properly compliant Care Plan a statutory duty for councils, wherever there are ANY eligible care and support needs found on the assessment, for the first time, in England.)

Continued driving down of the budgets being offered by reference to what’s already been bought, rather than genuine consideration of the actual cost of alternative options for delivering an outcome that meets needs as well as suiting the user, better;

Any automatic reduction in a notional amount needed after assessment, by reference to the mere existence of a person living in the same household;

A ££s based allocation based on the assumption that a person will inevitably end up being accommodated with other people, for their care, so that the care costs will be lower: it is not thought to be legally possible to limit an offer to meet needs to a person assessed as eligible, on the basis of a pre-condition that he or she moves into a group setting, where the basis of tenure requires a tenancy to be agreed to, by the person in question. Either s/he says yes, in which case there is no issue, once the accommodation is sourced – or, if they say No, the council is still obliged to meet the needs. Generally speaking it is people with a relative at home who wishes to stay at home, and for whom the family would like to carry on at least supporting, who get made to go without the longest, once reluctance regarding a move into supported living or extra care facilities is noted. This is not kind or humane because it increases carer strain and fudges the legal situation.

NB It is different, in legal terms, if the council makes a lawful offer to meet needs by way of a placement in a care home, where the council is willing to contract for the package, directly. If one says No to that sort of an offer, (an offer that is, we must stress, clearly lawful by reason of proper attention having been paid to psychological needs, as well as physical ones, to wellbeing, to person-centred outcomes, to the Mental Capacity Act’s procedural duties to consult an incapacitated person’s best interests contacts, and to the person’s human rights properly understood, and to all other relevant considerations – so not that easy for a council!) one may well be regarded as discharging the council from its duty to meet one’s needs, by one’s refusal.

Please do post your anecdotal evidence on this blog so that those advising service users and carers can start to build a picture of what’s really happening out there, now the Act is in force…

My training team is continuing to train all over the country (albeit able once again to draw breath, now, between outings) and has yet to find any council where the staff are completely clear about how to access an independent advocate to do the specific Care Act function of supportinginvolvement.

Councils seem to have expanded their IMCA, or other informal advocacy contracts, or grant funded subsidies to local organisations, rather than set up brand new arrangements – so we are wondering:

a) whether there are enough knowledgeable advocates out there, to avoid delaying assessments and care planning sessions or revision meetings?

(Safeguarding advocacy is slightly different, in so far as the government’s Guidance says that an advocate need not be in place before the start of a safeguarding process.)

b) whether the ones who had already got the old style advocacy qualifications have got any updated Care Act ‘legal issues’ awareness?

c) whether the advocates out there are meeting the independence requirement in the regulation that they are not ‘otherwise working’ for the council (- I am not sure how they’d know much about adult social care, if they weren’t, mind you!?)

d) and whether there is any difference in the specifications being put out there for informal advocacy for capacitated, but vulnerable people, as opposed to IMCA or IMHA statutory advocacy or the new, formal, Care Act independent advocacy.

Funding the last three types of advocacy is mandatory, on certain judgements being made about the facts.

For IMCA advocacy you have to be mentally lacking in capacity on the relevant statutory issue; for IMHA advocacy, you have to be covered by particular provisions of the Mental Health Act.

But for Care Act advocacy, you need substantial difficulty, in relation to one of four main stages of the customer journey, and it’s only for people not supported by others who are appropriate and willing to do it informally, if the person in question consents. But at least this legal right extends to people with lesser impairments or illnesses as would trigger those other kinds of support for involvement.